Niklaus v. Phoenix Indem. Co. of N.Y.

Decision Date11 April 1958
Docket NumberNo. 34328,34328
Citation166 Neb. 438,89 N.W.2d 258
PartiesWilliam NIKLAUS, Appellee, v. PHOENIX INDEMNITY COMPANY OF NEW YORK, Appellant, John M. Priest, Intervener-Appellant.
CourtNebraska Supreme Court

Syllabus by the Court

1. Suretyship is a contractual relation resulting from an agreement whereby one person, the surety, engages to be answerable for the debt, default, or miscarriage of another, the principal.

2. The surety's obligation is not an original and direct one for the performance of his own act, but is accessory or collateral to the obligation contracted by the principal.

3. The liability of the surety for the debt of the holder of the obligation is no greater and no less than that of the principal.

4. A party should not be vexed more than once for the same cause of action, and the doctrine of res judicata ordinarily includes not only the things which were determined in the former action but also any other matter properly involved which might have been raised and determined therein.

5. It is a fundamental principle of jurisprudence that material facts or questions which were in issue in a former action, and were there admitted or judicially determined, are conclusively settled by a judgment rendered therein, and that such facts or questions become res judicata and may not again be litigated in a subsequent action.

6. The conclusiveness of a judicial determination is not affected by the kind of proceeding or form of action in which it was made or by a difference in form or object of the litigation in which the adjudication was made and that in which res judicata is pleaded.

Cline, Williams, Wright & Johnson, Richard N. Thompson, Lincoln, for appellant.

J. A. Hayward, Lincoln, for appellee.

John M. Priest, intervener-appellant, pro se.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, CHAPPELL, and BOSLAUGH, JJ.

MESSMORE, Justice.

This is an action brought in the district court for Lancaster County by William Niklaus, plaintiff, against the Phoenix Indemnity Company of New York, defendant. John M. Priest filed a petition in intervention in the action. The purpose of the action was to recover on an appeal bond given in an action in forcible entry and detainer, required on appeal of such action by section 27-1416, R.R.S.1943. Trial by jury was waived and trial had to the court. Judgment was rendered in favor of the plaintiff in the sum of $887.70, together with interest in the sum of $205.78. Defendant and intervener filed separate motions for new trial, both of which motions were overruled. Defendant and intervener appeal from the order of the court overruling their motions for new trial.

For convenience we will refer to the parties as designated in the district court.

The plaintiff's amended petition alleged that the plaintiff owned the entire premises of 3145 Holdrege Street in Lincoln, Nebraska, the same being improved and consisting of a building with two apartments referred to as the upper and lower apartments; that on or about November 1, 1944, John M. Priest and Mabel V. Priest went into possession of the upper apartment of said premises for which they were to pay an initial rental of $35 a month which was increased to $40 a month and later to $45 a month; that under this arrangement all rents were paid by the Priests to December 1, 1948; that from this date on, the occupancy of the premises by the Priests was unlawful; and that on March 24, 1953, a judgment of restitution of the premises was issued for the benefit of the plaintiff and for eviction of the Priests. The amended petition further alleged that the defendant was indebted to the plaintiff on its bond for the reasonable rental of the upper apartment of the premises above described. It was further alleged that no part of the rental had been paid. Plaintiff prayed judgment against the defendant in the sum of $5,351.72, together with interest thereon at the rate of 6 percent per annum from July 1, 1954, and for costs of the action.

The amended petition also contained certain allegations pleading the same subject matter that was pleaded by the plaintiff herein as defendant cross-petitioner in a former action which was a foreclosure of a mortgage action. For the most part, such allegations were stricken from the amended petition in this action upon motion of the defendant.

The defendant's answer admitted that on or about April 1, 1953, a bond was issued by its agent which was approved and filed in the justice court on April 2, 1953, in a proceeding entitled William Niklaus, plaintiff, v. John M. Priest and Mabel V. Priest, defendants; and that final judgment was entered in said proceeding by the district court in favor of the plaintiff and against said defendants, and the plaintiff was placed in possession of said premises on March 26, 1954. The answer specifically denied each and every allegation contained in the plaintiff's amended petition not expressly admitted. The defendant further alleged in its answer that any obligation of the defendant by reason of the undertaking theretofore referred to was an obligation as surety only for John M. Priest; that by reason of litigation in the district court it was adjudicated that John M. Priest was not indebted to plaintiff William Niklaus for rental of the premises described in his petition during the period covered by defendant's undertaking; and that by reason of such adjudication plaintiff could not recover from the defendant in this proceeding. The prayer was for dismissal of the plaintiff's petition and for recovery of costs expended.

John M. Priest filed a petition in intervention denying generally the allegations contained in the plaintiff's amended petition, and alleging that all matters or claims pleaded in the plaintiff's amended petition had been previously adjudicated in a former action titled T. R. P. Stocker et al. v. William Niklaus et al., and that the present action and the former action were between the same parties or those in privity with one of the defendants and the intervener. The petition in intervention further alleged that paragraph 7 set out in the answer and cross-petition of William Niklaus in the case of T. R. P. Stocker et al. v. William Niklaus et al., alleged as follows: That T. R. P. Stocker, John M. Priest, and Mabel V. Priest were indebted to William Niklaus in the sum of $2,168.25 for the use and occupation of the said premises from January 1, 1952, to March 27, 1954, no part of which sum had been paid; and further alleged that paragraph XI as set out in the petition of William Niklaus in this action reads as follows: That the defendant was indebted to the plaintiff on its bond for the reasonable rental of the upper apartment of the premises above described from December 1, 1948, to March 27, 1954, plus interest on the above payments calculated to July 1, 1954, in the total sum of $5,351.72, and no part of said sum had been paid. It was further alleged that said former action was one in which William Niklaus, defendant therein, by way of answer and cross- petition, raised all material allegations and issues found in the present action; and that a decree was entered on May 13, 1954, in the former action and William Niklaus paid all claims as well as all costs as required by the decree which was accepted as final. The petition in intervention further pleaded estoppel on the part of the plaintiff to relitigate the same subject matter as was determined in the former action, and prayed that this action be dismissed and intervener recover his costs expended.

The plaintiff testified that he was the owner of the property at 3145 Holdrege Street. At this point objection was interposed by the intervener to any testimony by this witness on the grounds of res judicata and that all issues raised in the present case had been previously adjudicated in a former action, Stocker et al. v. William Niklaus et al. (The identity of this action will be further covered later in the opinion.) The defendant joined in the objection. The objection was overruled. The plaintiff proceeded to testify that he had owned the property since 1924. He described the improvements and the size of the apartments, and testified that the property consisted of an upper and lower apartment; and that during the period between April 1, 1953, and April 1, 1954, the reasonable rental value of the upper apartment was $75 a month, or in excess of that amount, with the renter paying the utilities. On cross-examination he testified that John M. Priest paid no rent; that there was an agreement in the 1940's that the rent would be $45 a month, which agreement was canceled January 1, 1952; that he recovered possession of the upper apartment of the premises on March 26, 1954, and rented it immediately for $75 a month with the renter paying the utilities. There was further testimony on behalf of the plaintiff and the defendant as to the reasonable rental value of the upper apartment of the premises.

At the conclusion of the plaintiff's testimony the intervener moved to strike all of the plaintiff's testimony on the grounds of res judicata. This motion was overruled.

The record discloses that a mortgage foreclosure action was brought in the district court for Lancaster County titled: 'T. R. P. Stocker, et al., Plaintiff v. William Niklaus, Mary Niklaus, John M. Priest, Mabel V. Priest, and Lincoln Sheet Metal & Roofing Company, et al., Defendants. Docket 181, Page 287.' The plaintiffs in the above-mentioned action sought to foreclose a mortgage which they held upon the premises involved in the instant case. The plaintiff in the present action filed an 'Amended supplemental and cross-petition' in the foreclosure case. In paragraph VII of the second cause of action contained in said cross-petition, he alleged: 'T. R. P. Stocker, John M. Priest and Mabel V. Priest are indebted to William Niklaus in the sum of $2,168.25 for the use and occupation of said premises (the premises here...

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13 cases
  • Rodehorst v. Gartner
    • United States
    • Nebraska Supreme Court
    • October 10, 2003
    ...(Emphasis omitted.) Sawyer v. State Surety Co., 251 Neb. 440, 444, 558 N.W.2d 43, 47 (1997), quoting Niklaus v. Phoenix Indemnity Co., 166 Neb. 438, 89 N.W.2d 258 (1958). "In effect the surety undertakes to `back up' the performance of the debtor and thereby gives the creditor the added ass......
  • Frey v. Hauke
    • United States
    • Nebraska Supreme Court
    • March 17, 1961
    ...See, Gilcrist v. Wright, 169 Neb. 799, 101 N.W.2d 158; Shepard v. City of Friend, 141 Neb. 866, 5 N.W.2d 108; Niklaus v. Phoenix Indemnity Co., 166 Neb. 438, 89 N.W.2d 258. We believe that this court's opinion in Hauke v. Frey, supra, is clear in that it held that there was a partnership ex......
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    • Nebraska Supreme Court
    • June 27, 1986
    ...performance of his own act, but is accessory or collateral to the obligation contracted by the principal. Niklaus v. Phoenix Indemnity Co., 166 Neb. 438, 445, 89 N.W.2d 258, 262 (1958). A suretyship may also arise by operation of law. L. Simpson, Handbook on the Law of Suretyship, Formation......
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    • April 20, 1984
    ...summary judgment in favor of the principal, Meissner, discharged the liability of Universal as surety, citing Niklaus v. Phoenix Indemnity Co., 166 Neb. 438, 89 N.W.2d 258 (1958), which held that a surety's obligation is not an original or direct one but, rather, is collateral to the princi......
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